Sanctions

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Just wondering, but what does the phrase “acted with substantial justification” mean in the sanctions statute for motion to compel depo testimony, CCP 2025.480 (pdf)?

Does it mean the conduct that led the moving party to make the motion has to be substantially justified? Or does it mean the decision to make or oppose the motion to compel has to be substantially justified?
Continue Reading Acted with Substantial Justification

Over lunch last week, a local attorney was complaining to me about his case that is going to trial in July. On the last day to serve written discovery, Plaintiff counsel had served each of his five clients, on behalf of each of her three plaintiffs, a separate set of 50 specially prepared interrogatories, 35 requests for documents, 70 requests for admissions and 17.1 of the Form Interrogatories for a total 750 specially prepared interrogatories and 525 requests for documents, 1050 requests for admissions and 4200 responses to Form Interrogatory 17.1 equaling 6525 discovery requests to be responded to 30 days before trial.

After his rant, I said to him that “You Need to file a motion for a protective order.” It was clear to me that the discovery was retaliatory, either because the case didn’t settle the week before at mediation, or that the opposing counsel was a nut job, or perhaps a little of both. Whatever the reason behind this absurd amount of discovery, he needed to file a motion for a protective order.
Continue Reading YOU NEED TO FILE A MOTION FOR A PROTECTIVE ORDER!!

Today I read a great article by Minnesota attorney Randall Ryder titled New Attorney? Don’t Get Intimidated by Opposing Counsel. The article struck a cord with me as it is a proponent of the same philosophy that I am advocating in my own blog–don’t be intimidated by a bully, do not react with words in kind and use the “Rules” to win. Here it is and I hope it hits a cord with you too.
Continue Reading Don’t Get Intimidated and Play by the Rules

Last spring I had the pleasure of taking a tour of the Royal Globe Theatre in London, England. On display there was a plaque titled “Quoting Shakespeare.” It brought a smile to my face when I read the passage as I realized how much of Shakespeare is in our everyday vernacular. There to I realized how many distinctive quotes there that I use over and over again as a Discovery Referee. Here are a few that you should keep handy to sprinkle into your arguments during your discovery battles.
Continue Reading Quoting Shakespeare

Growing up in an Italian household, our dinners consisted of salad, pasta, wine and an argument. Afterwards we all went out for ice cream with no thoughts of the argument that took place at the dinner table. That is because we thought of arguments as a sport and there was no reason to hold any grudges. However, when I became a lawyer I was surprised to find that lawyers did hold grudges despite the fact that law by its nature is an adversarial process and we are professional arguers.
Continue Reading Will You Join Me in the Gutter?

Cost of proof sanctions are designed to compensate for unnecessary expenses resulting from proving matters unreasonably denied. You don’t have to win the lawsuit to be awarded these sanctions. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1405 citing Smith v. Circle P Ranch Co., Inc. (1978) 87 CA3d, 267, 276. They way to win this motion is to set it up from the beginning.
Continue Reading GET YOUR COST OF PROOF SANCTIONS HERE!

Nine months after the Special Interrogatories were propounded, the Discovery Referee, found that the plaintiffs had “deliberately misconstrued the question” as to economic damages and determined that “the objections and each of them to be unreasonable, evasive, lacking in legal merit and without justification”. Clement at 1284 The Referee recommended that the motion to compel further responses be granted and that plaintiffs were to reimburse defendant $4,950.00 for legal fees, $40 for filing the motions to compel and $1,642.50 for defendants portion of the Discovery Referee’s fees for a total sanction of $6,632.50. The trial court agreed with the recommendation.
Continue Reading Garbage Objections = Sanctions

Attorneys easily spew out the objection “the information you are seeking is not relevant to the subject matter of the litigation” as easily as they say “Good morning.” If you are the propounding party your reaction is probably to be to yell out “It is too relevant!” because it doesn’t even appear that the responding party actually thought it through before spewing out the objection. But what exactly is relevancy? It seems to be a nebulous term that invokes images of catching clouds with your hands or like Supreme Court Justice Potter Stewart’s definition of pornography “I know it when I see it”?
Continue Reading It Is Too Relevant!

You have been served with the Motion to Compel Further Responses with a Separate Statement of Items in Dispute the size of your fist and your response is due in two weeks. Now what do you do? First, take a deep breath. This is the time you decide when to “hold them and when to fold them” because how you respond may end up setting the tone between you and opposing counsel for the entire case.
Continue Reading GAME ON-The Opposition